With much of the nation engulfed in race rioting curfews are in place in numerous locations. One theme the keeps reappearing is that conservatives are inconsistent with their values in that they oppose the Covid emergency orders, but support the curfews in response to the rioting. While the argument is superficially appealing a closer examination shows there are some distinct differences between the governmental actions. At the outset, I’ll acknowledge this is comparing somewhat different legal frameworks. To answer the argument I am using riot related criteria: a time, place, and manner limitation, and is the governmental action narrowly tailored to achieve the governmental interest. To narrow the focus I am using Houston as the example since the local officials did a relatively good job controlling the riots.
There’s no doubt the government has some authority to restrict assembly. But the rules for restriction are clear. With the riots doubtless some people who are attempting to peaceably assemble had their rights to assemble restricted. Given the sheer scale of the rioting it’s not possible to separate the honest protest individuals from rioters. We have a recent history, too, of BLM suddenly turning from peaceable to not. During the last significant protest they blocked 288, and when someone tried to get through to have an asthma attack treated they were assaulted. In the current rioting Ashton Woods threw the first punch in a street right. There’s videos of mob activity damaging random vehicles.
While people like to talk in terms of clear and present danger the test is actually imminent lawlessness. Given the recent history of blocking the streets, the current attempts to block the streets, Ashton Woods initiating a street fight, and the ongoing damage coupled with the inability to tell who is peaceable and who is not the imminent lawlessness test would seem to be met and restrictions are appropriate.
With the test met how does the government narrowly tailor the restrictions to meet their concerns? If a riot/peaceable meter were over everyone’s head it would be easy. Set the objective level and restrict. No such meter exists though; so rules of general applicability issue. Although the governmental action was not wholly successful to be fair the failures have not been widespread. This largely successful riot control doesn’t help the poor victims who have had their property damaged, especially since insurance coverage does not cover riots, but from an absolute instance standpoint the amount of lawlessness has been relatively contained. It’s also easy to adjust greater or lesser restrictions so the current restrictions are pretty much on point. While some degree of lawlessness and damage was tolerated; by and large the situation was contained by a limited governmental response. This narrow tailoring to the threat posed by the rioters seems justified.
Now compare that with the Covid restrictions. Is there a governmental interest? To a point. We don’t want the hospitals to be overrun, but we also don’twant to prevent all virus transmission. The stated government purpose was flatten the curve. That’s a misnomer; the goal is to keep the hospitals from being overrun. In light of the horrors in New York City some form of restrictions are appropriate. The whole it’s my right to go out criticisms fail because, despite complaints to the contrary, there is a governmental interest at stake.
Once a governmental interest is established – and one has been – the question is are the restrictions narrowly tailored to meet the government’s interest. Here’s where the legitimate criticism arises. The hospital capacity is not threatened, and the county spent millions to create unneeded extra capacity. The medical center has been publishing hospital utilization information for the Covid crisis. Three charts tell the tale of the threat posed to the local community.
Hospital ICU capacity is not threatened. On June 3, 2020 ICU occupancy stood at 219 Covid cases and 964 other cases, with 279 remaining unoccupied beds at base levels of capacity. On top of base capacity the hospitals have a plan for another 1,187 beds if necessary. We don’t want to see those additional beds become necessary, but at the same time the number of Covid related ICU occupancy could double and the baseline capacity would be able to handle the case load. With baseline ICU capacity not threatened it’s difficult to justify strict stay at home orders and mandatory masks.
June 3, 2020 is a single snapshot. What do the historical numbers tell us? The medical center has been publishing that information also. The data there is both comforting and concerning at the same time.
This graph shows daily hospitalizations with a 7 day moving average. The graph also notes the Phase I and Phase II openings. Unfortunately, the graph does not show data from the initial executive order implementing the stay at home restrictions. The graph starts with the order extending the stay at home order. With that order there was a generally quick rising daily hospital admission count at first that was quickly followed by a steadily falling admission count. Presumably, this is what lead to the phased reopening plan, and is the point where Governor Abbott and Judge Hidalgo’s paths separated.
Hospital admissions are not the only consideration. ICU utilization is a more important marker to look at since it is where the threat of death occurs. The medical center has published information regarding this matter. As you can see in the chart below, the ICU utilization data closely follows hospitalization data allowing for the same conclusions as with hospitalizations.
It’s noteworthy that the current ICU utilization is at similar levels as the high point following the March 31 order Governor Abbott issued. With the baseline capacity never threatened, and staggering economic harm arising from the restrictions it’s difficult to say the restrictions were narrowly tailored to meet the government’s interest. This is especially highlighted by the fact that the phased relaxing of restrictions has not caused a hospital capacity crisis. The local digging in on we can’t open up yet only magnifies the belief that the degree of restrictions are too broad.
Governor Abbott Should Not Have Implemented Phase III
Just because the data shows that Phase I did not have a detrimental impact on the hospitals it doesn’t mean we can simply say that the need for restrictions are over. The hospitalization and ICU utilization data both show a slow, but steady, increase in cases since phase II was implemented. We can’t extrapolate since the utilization is near or at the high point of when the initial stay at home order started dropping. Although the ICU utilization isn’t stressed we also do not see a Phase II rise end. Prudence says stay the course rather than loosen up.
Sadly, will not be able to have meaningful data for the effect of the Phase III implementation. Many tens of thousands of people were out in close quarters in the streets over the past week, doubtless including Covid carriers. A rise in hospitalization and ICU utilization cannot be attributed to either Phase III or the protesting. The time period and sheer number of individuals in close proximity prevents contact tracing. We simply can’t know what the etiology of the soon to appear increases.
So, to answer the argument. Are conservatives being inconsistent in saying Covid restrictions are a violation of rights, but supporting curfews in response to rioting? Yes, superficially, in the sense that some degree of governmental restriction appeared to be needed to respond to a governmental interest. However, that’s a straw man argument those critical of conservatives are raising. If we raise the steel man version of the argument that the implemented Covid governmental response is not narrowly tailored to meet the governmental interest someone can easily support the curfew and not support the local Covid restrictions that Judge Hidalgo is calling for.